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Clause Ii—(Construction And Application Of Certain Provisions Of Principal Act)

Volume 389: debated on Tuesday 25 May 1943

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Motion made, and Question proposed, "That the Clause stand part of the Bill."

I would like to call attention to a phrase in Sub-section (3), in which the following provision is made:

"In the following provisions of the principal Act, references to that Act shall, unless the 'context otherwise requires, be construed as including references to this Act."
I do not know, and possibly some legal Member of the Committee will be able to tell me, whether that is common form in an Act of Parliament of this kind. If it is, I suggest, where there are so many Sub-sections of the principal Act concerned, that it might quite likely give rise to litigation. Who is to determine—is it the Minister or the courts—whether the context of the Act otherwise requires? Is it really necessary to draft a Bill in this way?

There are many precedents for this phraseology, though I must confess that I have not checked through all these references in the Bill; but it is very common. I do not think in practice that it gives rise to any doubtful question which needs recourse to the courts. For instance, the fundamental Act of this House which deals with the interpretation of Statutes says that plural includes singular, "unless the context otherwise requires." Sometimes it may be put into a Bill out of excessive caution. but where you are enacting a general series of provisions, applying as in this case an earlier Act to the interpretation of a later Act, you should use words which prevent your applying any of those provisions in a manner fairly contrary to the context in which the words occur in the original Act. I have cases where it was quite plainly inapplicable and where obviously the words in the earlier Act taken in their context could only mean that the words were not intended to apply in the later Act. We can be absolutely certain that if there were no case which needed these words to preserve it, then it would be unnecessary to put them in. In any case, I will mention the point to the draftsman, and he can look at the words and see whether they are necessary.

I am afraid I am not very satisfied with the answer of the Attorney-General. I thank him for promising to look into the matter, but I would call his attention to a rather substantial point. We are told that this is common form. I know it is, but whether it is common form or not is not the point at issue, which is whether care has been taken, not by the draftsman—because it is the business of the Government and the Minister—to be satisfied that circumstances are not likely to arise in which a legal issue would be involved. It is intolerable that the Committee should be asked to pass legislation which might give rise to legal action, because a local authority or anyone else might have reasonable cause to go to a court in order to get an interpretation of the common practice phrase "unless the context otherwise requires." While I am grateful to my right hon. and learned Friend for his promise, may I say that I hope in future, where we have Clauses of this kind to consider, he will see that no such danger as I have indicated can arise? The well-known case of "male or female" where you say one or the other, as the context requires, does not arise here. I do not want to be critical, but would the Attorney-General be good enough to satisfy himself before the next stage of the Bill that no such situation as I have mentioned is likely to arise, namely, the possibility of litigation, when it can be avoided by greater clarification in the Measure?

The Noble Lord said he did not want to be critical, but in fact he was extremely critical, and all I can say is—I hope he will take this in the spirit in which I say it—that this is common form. There are perhaps half-a-dozen cases where the Act plainly otherwise requires, and it would be merely complicating the Bill and introducing unnecessary delay to deal with them more specifically instead of leaving them to be covered by these words. I will do my best to be ready to inform the House on all matters, but if my Noble Friend wants specific assurances of all the detailed cases which might be covered by a Bill, I should be grateful on a future occasion if he would give me notice or put down an Amendment. It is very difficult on the question of the Clause standing part to be ready to answer questions on every possible point of the Bill.

I cannot possibly give any such undertaking, which would be quite contrary to the practice of this House. I am now going to be very critical. It is the duty of a Minister to be acquainted with the Clauses of a Bill which he is asking the Committee to pass.

Question, "That the Clause stand part of the Bill," put, and agreed to.

Clauses 12 and 13 ordered to stand part of the Bill.